Abstract

The regulation of armed non-state actors is a challenge
to the state-centric international law paradigm. The vast
majority of international legal instruments which impact
the regulation of armed actors are open to ratification by states
only. This leads to the unfortunate situation in which armed nonstate
actors often fall outside the remit of international law and
their use of force and, indeed, the use of force against them, is
left unregulated, which can only be to the detriment of combatants
and civilians alike. However, there is an emerging trend,
led by the International Committee of the Red Cross (ICRC)
and non-governmental organizations (NGOs) such as Geneva
Call, to accommodate non-state actors under the international
humanitarian law (IHL) framework.
This article seeks to investigate how non-state actors, specifically
national liberation movements, are and could be regulated
by IHL. It seeks to give an overview of the relevant legal provisions
and illustrates the difficulties faced by national liberation
movements if they do wish to accede to IHL instruments and
apply IHL in their conflicts. As it is the aim of IHL to protect
both combatants and civilians in armed conflicts, it is important
that this body of law is practically applied and implemented in
all conflict situations to the greatest extent possible. However,
in the past, national liberation movements have encountered
difficulties when seeking to apply IHL to their conflicts due
to the nature of the legal framework and, indeed, the nature of
international law itself.
International law, the body of law that governs states in their
relationships with one another, generally struggles to accommodate
non-state actors. The international legal instruments
dealing with the laws of war, namely the Geneva Conventions
of 1949,1 the Hague Regulations of 1907,2 and more modern
international conventions seeking to regulate weapons such as
the Ottawa Treaty of 1997 banning landmines,3 were all drafted
by states with the regulation of states in mind. These instruments
almost exclusively limit ratification to states and do not allow
for the accession of non-states. This means that non-state actors,
including national liberation movements, face many difficulties
when seeking to be bound by and apply IHL provisions in their
conflicts, thus limiting the protection available to those fighting
and caught up in these conflicts. However, non-state actors are
active in various theatres of war and it is therefore vital that a
realistic IHL framework that accommodates non-state actors be
formulated.